Keywords

3.1 Introduction

To become effective, international human rights treaties first need to be ratified and implemented by state parties. It is useful to scrutinise the ratification of a treaty and the mechanisms employed with a view to implement it because these processes will orient the future uses of—and engagements with—a treaty. Beyond explaining the Swiss constitutional framework relating to international treaties, this chapter aims to outline the procedures and mechanisms that will influence how subnational political actors view and use a treaty. We will show that even the understudied pre-ratification procedure is worth being researched for this purpose. Indeed, as Simmons demonstrated, a government’s support for treaty ratification may be based on its domestic actors’ preferences (and notably those of its subnational units) rather than on the content of the treaty (Simmons, 2012). Audrey Comstock aptly observed how the ratification of a human rights treaty is just one aspect of a state’s commitment to the human rights issues contained in the treaty (Comstock, 2021, pp. 23–45), and the ratification alone does not reveal yet whether and how the political authorities of a state intend to engage with the treaty. Rather, pushing the analysis further, we argue that the pre-ratification procedure constitutes an opportunity for the government to influence the preferences of actors within subnational units, which would consequently shape the later uses of a treaty. As explained before, no standard procedure exists for implementing human rights treaties. However, different ‘domestic implementation mechanisms’ (Kaempfer, 2023) are used by the actors who want to facilitate an engagement of subnational units with international treaties, potentially leading to implementation. Through a classification of these mechanisms in four categories (namely, sanctions, rewards, awareness-raising and co-operation), we show how they aim to orient the ways in which human rights treaties are later used, engaged with and implemented.

This chapter first presents the literature relating to the ratification of international human rights treaties, and to the notion of ‘domestic implementation mechanisms’. The chapter goes on to present the procedure for the ratification of international treaties and the available implementation mechanisms in Switzerland and then highlights the ratification and implementation mechanisms of our two case studies: the Istanbul Convention and the UN Convention on the Rights of Persons with Disabilities (CRPD). This enables us to identify and categorise the mechanisms used for the implementation of these treaties and discuss their implications.

3.2 Theoretical Framework on Ratification and Implementation

From a legal point of view, before the political authorities of a state (including subnational units) use—and sometimes engage with—an international treaty, it needs to be ratified. As we will show, this ratification procedure may already influence the way in which subnational units use the treaty. We will also explain how, in federal states, ‘domestic implementation mechanisms’ are sometimes developed at federal, inter-cantonal or cantonal level to orient subnational units in their uses of the treaty.

3.2.1 The Ratification of Treaties

In her book Mobilizing for Human Rights, Simmons (2012) explains that the ‘negotiation and ratification [of treaties] reflect the power, organization, and aspirations of the governments that negotiate and sign them, the legislatures that ratify them, and the groups that lobby on their behalf’ (Simmons, 2012, p. 12). She also puts the emphasis on the influence that domestic institutions (and notably their subnational units) might have on a government’s support for the ratification of a treaty:

Because governments sometimes anticipate that ratification will impose political costs that they are not ready to bear, they sometimes self-screen. […] The point is this: Two governments with similar values may appear on opposite sides of the ratification divide because of their domestic institutions rather than their preferences for the content of the treaty itself. Treaties may act as screens, but domestic institutions can do so as well. (Simmons, 2012, p. 13)

We also believe that a government’s support for ratification may depend on the stance of their domestic institutions as well as on the content of the treaty. In this chapter, we wish to push the analysis further and show how the ratification procedure enables the government to influence domestic institutions. A government may for instance use this procedure to downplay the implications of a ratification. Moreover, we argue that the ratification procedure also influences how domestic institutions later use—and engage with—the treaty.

3.2.2 The Implementation of Treaties

According to the principle of pacta sunt servanda, once an international treaty has been ratified, it is binding upon the contracting parties and they must faithfully perform the obligations it contains.Footnote 1 The corollary of this principle is that a state cannot invoke the legislative procedures of its internal law to justify the non-performance of an obligation arising from a treaty.Footnote 2 Except for this general rule prohibiting states from invoking internal legal issues to avoid complying with international law and the general obligation to fulfil its commitments, international law does not contain any general provisions regarding its implementation (Cassese, 2005, p. 219). This gives each state considerable freedom as to how it fulfils its international obligations domestically (Cassese, 2005, p. 219; Denza, 2018, p. 386).

Given this freedom, several states have developed their own ‘domestic implementation mechanisms’ (Kaempfer, 2021). According to Simmons, compliance with international human rights treaties is mainly the result of mechanisms operating at a domestic level (Simmons, 2012, p. 126). De Beco also thinks that domestic non-judicial mechanisms (national human rights institutions, human rights indicators, human rights impact assessments and national human right action plans) are essential to implement human rights (De Beco, 2010, p. 3). More recently, different authors also recognised the decisive role of domestic mechanisms in the field of internal enforcement of decisions issued by supranational bodies (Donald & Speck, 2020, p. 67; Murray, 2020, p. 1). Such mechanisms are particularly important to determine which state actor is responsible and how implementation should be co-ordinated (Murray & De Vos, 2020, p. 29). Other scholars mention the importance of governmental focal points within the administration and parliamentary human rights committees to bridge ‘the implementation gap between commitments and reality’ (Jensen et al., 2019, p. 165 f.).

In this book, ‘domestic implementation mechanisms’ are regarded as facilitators for subnational units to engage with human rights treaties and, potentially, to facilitate implementation. The function of such mechanisms is to influence or produce an outcome. Yet, the outcome (implementation or lack thereof) is not decisive for a measure to qualify as a mechanism. Moreover, ‘domestic implementation mechanisms’ are exclusively internal. This excludes international implementation mechanisms such as regional courts, UN mechanisms (such as treaty bodies or the Universal Periodic Review) or other international monitoring and communications procedures. Such mechanisms can be very useful to help domestic (including subnational) authorities interpret and engage with international obligations. In particular, international reports or decisions can be strategically used by civil society or legislators to push a legislative project. While we take such documents into account when analysing the uses of and the engagement with international treaties in the cantons, we do not study the effect of these mechanisms on subnational actors in Swiss cantons. Indeed, this book studies how the engagement comes about within the domestic legal system and how subnational actors use human rights treaties. It does not seek to understand e.g. how UN bodies interpret these treaties. This approach follows a trend in international literature to focus on local actors of implementation (Jensen et al., 2019, p. 165).

Based on these criteria, several measures can be qualified as ‘domestic implementation mechanisms’: reports, structures, guides, dissemination of ‘good practices’, monitoring, scientific support, subventions, models, etc. But what about pre-existing structural or political conditions (political agenda, institutional characteristics of parliament, size of the canton, etc.) which also influence the implementation process? While they certainly play an important role, such influences cannot be described as mechanisms. These conditions rather ‘create both opportunities and obstacles for pro-implementation actors’ (Donald & Speck, 2020, p. 67). However, they do not directly aim at encouraging implementation. These factors and conditions, which may limit or enable engagement with international treaties, are discussed in Chapter 5.

Finally, we only include mechanisms that originate with actors involved in the policy process. Such actors are either de jure supposed to engage with the treaty (e.g. Federal government, subnational parliaments and subnational governments) or brought into the process by those who are (e.g. external experts mandated by the parliament).

3.3 Ratification and Implementation of International Treaties in Switzerland

This section describes how treaties are ratified and which types of ‘domestic implementation mechanisms’ already exist in the Swiss legal order. It highlights how these procedures and mechanisms can orient the way a treaty is used in subnational policy processes.

3.3.1 The (Pre-)Ratification Procedure

Before ratifying an international treaty, the Swiss government (the Federal Council) has to organise a consultation procedure,Footnote 3 sometimes referred to as a ‘pre-parliamentary consultation procedure’, which ‘has the aim of allowing the cantons, political parties and interested groups to participate in the shaping of opinion and the decision-making process of the Confederation’.Footnote 4 It is mandatory for the adoption of certain legal instruments—notably for international law agreements that are subject to a referendum—and for projects that ‘significantly affect individual cantons or all the cantons’.Footnote 5

The relevant department of the Swiss government thus sends a ‘Preliminary project and explanatory report’ to the cantons, political parties and interested groups. This document is supposed to present the treaty and explain all its implications—notably which provisions fall into cantonal competences and what will be the consequences on the finances and personnel situation of the cantons. This document also provides the Swiss government with an opportunity to interpret the Convention and orient the implementation in case of ratification. For instance, if the government states that Switzerland already fully complies with a treaty, it is likely that most cantonal authorities will then take that for granted and not look at the treaty in detail. In practice, we observe that the government generally speaks deferentially in these documents: they are never very directive towards the cantons and often understate the measures that they might have to take in case of ratification. This is probably because (1) the federal government does not feel legitimate to tell the cantons what they have to do in view of Swiss federalist division of competences and/or (2) the government willingly understates the required measures in order to ensure subnational support for the treaty. As demonstrated by Simmons (Simmons, 2012), a government’s support for ratification may depend on the structure of its domestic institutions and on the political context (and notably its subnational units) rather than on the content of the treaty. We show that the consultation procedure enables the government to influence domestic institutions and notably to make appear the implications of ratification minor.

Cantonal constitutions generally foresee that governmental authorities are consulted during this process (Nuspliger, 2006). Usually, cantonal governments then consult the relevant services of their administration. This procedure provides cantons with an opportunity to comment and support or oppose the ratification of new international treaties by Switzerland.

Following the consultation procedure, the Swiss government requests the Swiss parliament to approve new treaties (according to Article 166 al. 2 of the Federal Constitution, the Swiss parliament has to ‘approve international treaties, with the exception of those that are concluded by the Federal Council [the Swiss government] under a statutory provision or an international treaty’). The Federal Council sends this request along with its ‘Message’, which is published in the ‘Federal Gazette’. The Message is largely based on the Preliminary project and explanatory report used for the consultation procedure, but it also mentions the replies received during that procedure. Once the Swiss parliament approves the treaty, the Federal Council then usually ratifies the treaty and announces when it will enter into force. The treaty is then published in the Official Compendium of Swiss Federal Law.

3.3.2 The Implementation Procedure

The Swiss legal framework for the implementation of international law is minimalist. It lays down general principles relating to the implementation of international law but does not establish concrete rules. Therefore, in practice the implementation of international treaties in Switzerland takes various forms, as we will see in the following sections. Sometimes, inter-cantonal conferences play an important role in the cantonal implementation of international treaties. Inter-cantonal conferences are composed of members of various cantonal executives who co-ordinate between the cantons around thematic issues. This was the case for the implementation of the Istanbul Convention. At other times, independent groups of experts can act as driving forces in the implementation process, as the case for the Convention on the Rights of Persons with Disabilities.

In the absence of a well-established framework for the implementation of international treaties, several ‘domestic implementation mechanisms’ have been developed by different actors to implement international treaties (Kaempfer, 2023). Based on a study of a broad range of international law instruments, including both international human rights treaties and European Union law, Constance Kaempfer classified these mechanisms into four categories.Footnote 6 The first group of mechanisms aims to offer a reward to the implementation actors, for example through a subsidy (‘rewards’). The second group aims to punish recalcitrant actors to encourage them to act, for example through federal enforcement—which is, however, very rare (‘sanctions’). The third group seeks to improve implementation by disseminating information about an obligation, for example through reports or action plans (‘awareness-raising’). Finally, there are also rallying or co-ordination mechanisms, which encourage the cantons to implement international provisions in a certain way, such as inter-cantonal agreements or minimum harmonisation laws (‘co-operation’). Such mechanisms seek a co-ordinated implementation of international obligations.

In the Swiss federal system, ‘awareness-raising’ mechanisms are the main (and sometimes the only) tools developed to encourage the implementation of human rights obligations at subnational level (Kaempfer, 2023). As far as engagement is concerned, we will see in the following sections that these mechanisms are merely invitations and have little power over subnational policy processes.

3.4 Ratification and Implementation of the Istanbul Convention

This section describes the ratification process of the Istanbul Convention and the ‘domestic implementation mechanisms’ that have been established to encourage subnational units to use and engage with the Convention.

3.4.1 Ratification of the Istanbul Convention

In preparation for the ratification of the Istanbul Convention, the consultation procedure took place between October 2015 and January 2016. The project sent into consultation by the Federal Office of Justice stated that ‘globally, Swiss law fulfils the requirements of the Convention’, but acknowledges that ‘a few points must be clarified with regards to cantonal competences […] notably on the question of whether there exist enough shelter possibilities for victims’ (our translation).Footnote 7 All the cantons, the major political parties, and interested institutions and organisations were invited to submit their position. The vast majority of the participants supported Switzerland’s ratification. Three cantons (Luzern, Schwyz and Thurgau) and one party (the Swiss People’s Party) opposed the ratification, along with a few institutions and organisations.Footnote 8

Therefore, on 2 December 2016, the Federal Council requested the Swiss parliament approve the Istanbul Convention, which it did on 16 June 2017. The Federal Council then ratified the Convention on 14 December 2017, and the Convention entered into force for Switzerland on 1 April 2018.

This procedure shows how an explanatory report on ratification can orient the way cantonal authorities will use a treaty. By indicating that the Swiss legal order is already largely in line with the content of the treaty, the report sends the message to the relevant authorities that they will have almost no measures to take to comply with the Convention. As we will observe, this does not accurately reflect reality.

3.4.2 Designation of Implementing Bodies at the Federal and Cantonal Levels

With regard to implementation, Article 10 of the Istanbul Convention states that parties shall ‘designate or establish one or more official bodies responsible for the co-ordination, implementation, monitoring and evaluation of policies and measures’.Footnote 9 The Explanatory report specifies that ‘[t]he term ‘official body’ is to be understood as any entity or institution within government’.Footnote 10 It adds that ‘[r]egarding the tasks of implementation, monitoring and evaluating this body should be in existence on the respective level of a Party’s structure which is responsible for the carrying out of the measures. This means that in a federal government structure it may be necessary to have more than one body’.Footnote 11 Despite this, Switzerland decided to designate only one official body: the Domestic Violence Domain of the Federal Office for Gender Equality (BFEG).Footnote 12

However, in the case of the Istanbul Convention, in addition to this single official body, Swiss federal authorities designated other specific organs to ensure the implementation of the Convention at the cantonal level, although they were not designated as official bodies. The Conference of Cantonal Ministers for Justice and Police and the Conference of Cantonal Ministers of Social Affairs mandated the Swiss Conference against Domestic Violence (CSVD) to facilitate the inter-cantonal implementation of the Convention.Footnote 13 These so-called inter-cantonal conferences are recent instruments of federalism in Switzerland, which provide cantons with an arena for horizontal co-ordination and informal access to the national level (Vatter, 2018, p. 75). Different types of inter-cantonal conferences exist: the Conference of cantonal governments, the most important of these conferences, constitutes the first type. It was set up in 1993, ‘to ensure that the cantonal interests are considered in the Europeanization process’ (Vatter, 2018, p. 75). Second, there are twelve conferences of ministers, such as the Conference of Cantonal Ministers for Justice and Police and the Cantonal Ministers of Social Affairs. Third, there are inter-cantonal conferences of experts, which regroup specialised civil servants from the cantonal administrations, such as the CSVD.

The CSVD was founded in 2013, so that cantonal civil servants in charge of domestic violence could speak with one voice in cases of consultation procedures or other national projects regarding domestic violence. Before that, these civil servants were regrouped in two regional conferences. These two conferences—a Latin one (the Conférence latine contre la violence domestique) and a German one (the Konferenz der Interventionsstellen, Projekte und Fachstellen gegen häusliche Gewalt der deutschen Schweiz)—still often meet to exchange experience and collaborate on specific projects. An organisational difference between the two linguistic regions exists: in the Latin part, civil servants in charge of domestic violence work within the cantonal Bureau de l’égalité (‘Office for Gender Equality’), while in the German part, they are usually attached to the Justice and Security cantonal department.Footnote 14

The choice of the institutional anchorage of where the main responsibility for treaty implementation is placed is not a coincidence. By choosing either a gender equality office or a Justice and Security department, the subnational authorities participate in the framing of the implementation of the IC and place the emphasis on either the equality aspects of the treaty (including both prevention and fight against both violence against women and domestic violence) or a narrower emphasis on domestic violence. It is important to mention here that members of the CSVD—who are responsible for the policy combating domestic violence in their canton—are, for the French-speaking cantons, cantonal offices for gender equality, but for the German-speaking and Italian-speaking cantons, they are intervention centres and services against domestic violence in departments either of interior, of justice and police, or of social affairs, or in the cantonal police. In certain cantons, the implementation of the IC is thus mainly framed as an issue of domestic violence, while it is more broadly an issue of violence against women and of domestic violence, both linked to gender equality issues in other cantons.

3.4.3 Role of the BFEG in Subnational Implementation

Upon receiving its mandate, the CSVD published a report on the implementation of the Istanbul Convention at the cantonal level,Footnote 15 which took stock of relevant measures taken by cantons and identified seven priority fields for the first phase of the implementation. Shortly after the publication of this report, on 29 October 2018, the BFEG issued an ‘Implementation Concept’, which aims to clarify the collaboration between the federal state and the cantons. This document acknowledges the fact that large parts of the Convention fall into the competences of the cantons and specifies that in such cases, the cantons are responsible for completing the necessary measures.Footnote 16 Accordingly, the Conference of Cantonal Ministers for Justice and Police and the Conference of Cantonal Ministers of Social Affairs agreed to prioritise six fields during the first phase of the Convention’s implementation,Footnote 17 which lasted from mid-2018 to the first Swiss State Report to the Council of Europe (see Article 68 of the Convention), initially due in 2020, but which was finally submitted in June 2021.

In 2022, the federal government (after the request of the federal parliament) charged the BFEG to draft a national action plan 2022–2026 for the implementation of the Istanbul Convention.Footnote 18 This action plan identifies priority fields and measures to be taken during this period, both at the federal and cantonal levels. Most of the measures regard information campaigns to the public and training for professional staff and volunteers, for which funding was made available. The BFEG also co-ordinates the implementation and the monitoring of this action plan.

This national action plan, as well as the report and implementation concept mentioned in this section, serve an informational purpose towards the cantons, informing them of where their efforts should focus with regard to the implementation of the Convention.

3.4.4 Role of the CSVD as a Link Between the BFEG and the Cantons

As the BFEG does not have contact with individual cantons, the CSVD acts as a ‘seismograph on the field’Footnote 19 for them. The BFEG has regular exchanges with the CSVD; they meet once a year to discuss both sides’ priorities. They sometimes also have common projects that the BFEG can financially support. Since the entry into force of the Istanbul Convention, the Conference of Cantonal Ministers for Justice and Police exchanges more regularly with the CSVD, as they often need advice from the technical experts.Footnote 20 In short, the CSVD works as a link between the cantons on the one hand, and the BFEG, the Conference of Cantonal Ministers for Justice and Police and the Cantonal Ministers of Social Affairs on the other.

Members of the CSVD meet three to four times a year. Interviewees stated that these meetings are primarily a place to exchange information and share experiences (notably what works well and what does not), to discuss potential common projects. Some CSVD members who are less familiar with the Istanbul Convention take advantage of the CSVD to ask fellow members which actions they should take to respond to the Convention. This is more likely to happen to members of smaller cantons, who have less resources.Footnote 21

Furthermore, the CSVD creates working groups on specific topics, for prevention campaigns, or when they want to take a stance on a distinct political issue. These working groups serve as fora for officials to receive input from members of private associations active in relevant fields, such as shelter institutions.

Despite the foundation of the nationwide CSVD in 2013, the two regional conferences (Latin and German), remain active and seem to carry more importance than the CSVD. According to one CSVD member, the Latin conference meets at least five times per year and is able to produce more output, while CSVD meetings are limited to information exchange. This is probably because the regional conference existed before the CSVD and their members are less numerous, speak the same language, and, as a result, probably know each other better. Regional conferences, for instance, allow the creation of prevention campaigns and exhibitions. Cantons join forces to produce regional strategies.

With regard to the implementation of the Istanbul Convention, an important contribution of the CSVD is the 2018 report on the implementation at the cantonal level, which identified the seven priority fields. This report was written by the Committee of the CSVD—i.e. by the two co-presidents and two other members—in consultation with the CSVD as a whole.Footnote 22 The co-president of the CSVD explained how this report was produced: by translating and adapting the Istanbul Convention into priority fields of action through a back-and-forth process between the needs identified in the field and the content of the Convention. The report was drafted on this basis and was consequently produced exclusively at the cantonal level. Neither the BFEG, nor any other federal entity was consulted.

Overall, CSVD members see the CSVD as an implementation mechanism in the sense that it fosters the exchange of information and may serve for co-ordinating activities, thus contributing to the implementation of the Istanbul Convention. Ultimately, individual members are free to take or suggest implementing measures in their own canton. Moreover, we observe an institutionalised implementation process, with the designation of an ‘official body’ at the national level (the BFEG), and another state entity (the CSVD) mandated to facilitate implementation of the Convention at the inter-cantonal level (although not designated as an ‘official body’ as per art. 10 of the Convention). We also observe that the CSVD did not only act as a top-down implementing actor, but it also identifies the needs in the field in relation to the content of the Convention in a bottom-up manner, which overall, forms a back-and-forth process.

3.5 Ratification and Implementation of the Convention on the Rights of Persons with Disabilities

This section describes the ratification process of the Convention on the Rights of Persons with Disabilities and the ‘domestic implementation mechanisms’ that have been developed to encourage subnational units to use—and engage with—the Convention.

3.5.1 Ratification of the CRPD

In preparation for the ratification of the CRPD,Footnote 23 the consultation procedure took place between December 2010 and April 2011.Footnote 24 In a similar way to the consultation on the Istanbul Convention, the project states that ‘the Swiss legal order complies in principle with the Convention, even if there are areas in which legislative adaptations might be necessary in order to take into account the specific requirements of the Convention as a whole’ (our translation).Footnote 25 We will see that this statement, as for the case discussed above, does not accurately reflect reality. All the cantons, the major political parties, and interested institutions and organisations submitted their position. Most cantons expressly approved ratification or at least supported its principle.Footnote 26 However, four cantons (Appenzell Innerrhoden, Nidwald, Thurgau and Vaud) considered ratification superfluous due to sufficient legislation in this area.Footnote 27

On 19 December 2012, the Federal Council requested the Swiss parliament approve the CRPD, which it did on 13 December 2013. The Federal Council then ratified the Convention on 15 April 2014, which entered into force for Switzerland on 15 May 2014.

As for the Istanbul Convention, the ratification procedure described above shows that an explanatory report on ratification already orients the uses of the treaty by the relevant subnational authorities. In the present case, the report implies that Swiss law is already largely in line with the Convention and therefore that subnational authorities do not need to act, or at least not much.

3.5.2 Absence of a General Implementation Strategy

In contrast with the implementation of the Istanbul Convention, neither the Federal Office for the Equality of Persons with Disabilities (BFEH) nor the Conference of Cantonal Delegates for Disability Issues adopted any implementation strategy for the CRPD. According to one of our interviewees, the Federal Council assumed that it would be enough to wait for spontaneous cantonal (and federal) legislative revisions and the implementation of the Convention would follow automatically.Footnote 28 Yet, Article 33 of the Convention, similar to article 10 of the Istanbul Convention, mandates the establishment of focal points responsible for implementing the Convention’s provisions. In its Message on the Convention, the Federal Council considered that the BFEH would take on some of the duties of a federal ‘focal point’.Footnote 29 For cantons, the Federal Council suggested that having focal points was desirable but not essential for the national application of the Convention.Footnote 30

Switzerland has recently been criticised by the UN Committee on the Rights of Persons with Disabilities for the lack of a comprehensive strategy to implement the CRPD.Footnote 31 Therefore, the Committee recommended that Switzerland adopts ‘a comprehensive disability strategy and action plan for implementing all Convention rights at all levels of government, and strengthen co-ordination and co-operation among entities at the federal, cantonal and municipal levels’.Footnote 32 In March 2023, the Federal Council adopted a new ‘disability policy 2023–2026’.Footnote 33 The document fixes four priority fields of action (work, housing, benefits and participation). In terms of implementation, the report foresees the creation of committees in the four priority action fields to enhance the involvement and co-operation of the main actors.

Perhaps as a response to the federal government's slow progress in this area, at least two different groups of experts developed ‘domestic implementation mechanisms’ to encourage subnational units to engage with the treaty. These mechanisms are described below.

3.5.3 Creation of an Implementation Guide

At the University of Basel, a group of academic experts first gave specific input on the creation of several cantonal laws related to equality for persons with disabilities and secondly, created an implementation guide for the CRPD. These initiatives were not prompted by the Confederation but were instead driven by the voluntary efforts of certain cantons to implement the Convention.Footnote 34 Depending on the canton and the situation, the experts supported the cantons through an analysis of the existing legislation, interviews with members of the cantonal administration and the drafting of a first draft of the law (Schefer et al., 2022, p. 156ss). Our analysis shows that the guidance provided by the team of experts was instrumental in spurring not only the engagement of the cantonal legislators but also the translation of the Convention into numerous concrete measures. In a cross-cutting area such as the rights of persons with disabilities, one cannot expect every employee of the cantonal administration to be aware of all the international obligations that concern him or her.Footnote 35 The University’s external perspective made it possible to support the legislative project against the scepticism or resistance of certain cantonal departments, and to bring an academic expertise where cantonal bureaucracies face uncertainties about how to interpret the CRPD, their obligations, as well as what they must and can do to implement the CRPD.Footnote 36 According to the editors of the implementation guide, the involvement of external experts also avoided an accumulation of roles by the department in charge, which was then perceived as credible and sufficiently removed from local politics (Schefer et al., 2022, p. 156).

The processes described above work by providing specific and targeted advice to parliamentarians in specific cantons. While such a mechanism may spur engagement with the obligations under the CRPD, it requires significant personal and budgetary resources. It is therefore hardly conceivable that it could be generalised to all cantons. However, based on positive experiences in some cantons, and with financial support from the Federal Office for the Equality of Persons with Disabilities (BFEH), the team of experts developed a guide to assist other cantons in engaging with the CRPD (Schefer et al., 2022). For the drafting of the guide, the experts met with persons with disabilities, the federal administration, the Conference of Cantonal Directors of Social Affairs and various organisations for the protection of persons with disabilities.Footnote 37 These interviews showed a significant disparity between the cantons in terms of their willingness to adopt provisions to implement the CRPD.Footnote 38 Their respective interest in the guide was also very different. While some cantons claimed that they had already met their obligations under the Convention, others recognised that their legislation was insufficient and were eager to use the guide.Footnote 39

The guide is structured to facilitate the work of the relevant cantonal authorities. It contains four parts. The first part outlines the international and federal obligations of the cantons in the field of equality for persons with disabilities and identifies the need for action in cantonal legislation. The second part formulates some suggestions as to how cantonal legislation in this field could be structured. The third part contains a model law with some explanations. Finally, the fourth part takes the form of a commentary on the CRPD specifically for the cantons.

This example illustrates how, in the absence of a strategy adopted by federal or inter-cantonal authorities, experts have taken the lead to meet the needs expressed by certain cantons. The guide is a ‘domestic implementation mechanism’ that emerged from ‘below’ in a ‘bottom-up’ manner while taking a top-down legal perspective (creating a model law to be taken and adapted by cantons).

3.5.4 Dissemination of ‘Good Practice’ on a Website

In the absence of a federal implementation strategy, the Swiss Centre of Expertise in Human RightsFootnote 40 created another ‘domestic implementation mechanism’ to encourage subnational units to engage with the CRPD. This mechanism operates through a dedicated website (www.cdph-exemplespratiques.ch). The website disseminates information and highlights examples of good practices from various Swiss cantons to implement the CRPD, with the goal of making the Convention known to the public and encouraging engagement by subnational actors.Footnote 41 By presenting examples of good practices from cantons, the website also gives credit and recognition. The mechanism functions through a back-and-forth process, taking information from some cantons and making it available to all.

3.6 Discussion

3.6.1 Around the Ratification of Treaties: A First Phase to Orient the Engagement of Cantonal Political Authorities

The ratification procedures of our two case studies are quite alike. In both instances, the Federal Council (government) considered, during the pre-parliamentary consultation phase, that the Swiss legal system was already in compliance with most of the treaty’s obligations. Such a statement, from the country’s highest executive authority, decisively orients the way in which the subnational authorities will use and engage (or not) with the treaty. As discussed in subsequent chapters, subnational entities often need guidance to effectively engage with international treaties. As such, orientation from the federal level is of utmost importance. In our case studies, the Federal Council seems to have at times underestimated or downplayed the effort needed from subnational units to implement the treaty.

3.6.2 Varieties of International Treaties Implementation Strategies: Top-Down or Bottom-Up?

This chapter shows that no formal institutional procedure exists to guarantee the implementation of international human rights treaties at the subnational level in Switzerland. However, we observe that both the Istanbul Convention and the CRPD require the designation of state entities (at the national and sometimes at the subnational level) responsible for implementation. While these actors designed an implementation strategy for the Istanbul Convention, none of them did so for the CRPD (so far, but the “Disability Policy 2023–2026” makes a step in this direction). Moreover, in the first case, we observe that federal authorities are increasingly active in creating implementation dynamics, including most recently a federal action plan launched by the Federal Council to implement the Istanbul Convention at the different levels of the Confederation (national, cantonal and communal).Footnote 42 In the case of the CRPD, we did not observe such an implementation dynamic from the federal level. This may have been one reason why academic experts stepped up to take the lead, creating a comprehensive implementation guide and a website to encourage cantons to reform the relevant policies. By providing an accessible repository of information, these efforts aim to make it easier for cantons to engage with the treaties. The mechanisms developed by different experts should indeed help them identify and address the necessary changes.

We also demonstrated that these implementation mechanisms are never purely top-down. In the case of the CRPD, the fact that the guide came into existence and can now be used in a top-down way is due to reasons originating bottom-up: the positive experiences observed in certain cantons inspired academic experts to devise tools to address the lack of resources provided at the federal or inter-cantonal level. For the Istanbul Convention, while the implementation process may at first sight appear as a top-down process, we observe that it is an iterative process (as observed in other studies: Donald & Speck, 2020; Haglund & Stryker, 2015; Risse et al., 1999), with the CSVD going back and forth between the needs in the field and the content of the Convention.

3.6.3 Mechanisms at Stake in the Two Case Studies

Domestic implementation mechanisms for international treaty obligations in Switzerland can take various forms: sanctions, rewards, awareness-raising and co-operation (Kaempfer, 2023). In our two case studies, the mechanisms involved were essentially awareness-raising (such mechanisms are sometimes called sermons in the literature (Bemelmans-Videc et al., 1998)). These information mechanisms include the experts’ implementation guide and the website for the CRPD provided by the Swiss Centre of Expertise in Human Rights, as well as the BFEG’s implementation concept and national action plan, and the CSVD’s implementation report for the Istanbul Convention. Such mechanisms are rather ‘soft’: they seek to change the behaviour of the cantonal authorities through information and advice, but such ‘awareness-raising’ mechanisms do not sanction cantons for implementation failures, nor do they imply financial incentives or a strong involvement of the federal level in achieving a co-ordinated implementation at the subnational level. ‘Awareness-raising’ mechanisms may come with reputational gains or risks (‘naming and shaming’) and they can contribute to changing the political will in the areas in question; however, they usually do not allow for a systematic implementation of international law.

Constance Kaempfer examined the various mechanisms used in Switzerland to implement human rights treaty obligations on the one hand and obligations from bilateral treaties between Switzerland and the European Union on the other hand. She found that information-based mechanisms are, by far, the most commonly used in the field of human rights obligations, while the Confederation shows a greater willingness to employ other, including ‘harder’ mechanisms such as sanctions and rewards in the field of European Union Law (Kaempfer, 2023). Indeed, despite the existence of ‘awareness-raising’ mechanisms, the international conventions studied have not been systematically implemented in all cantons, as the following chapters will demonstrate, and as other studies have similarly found (Belser & Egli, 2022). In its concluding observations on the initial report of Switzerland on the CRPD,Footnote 43 the Committee on the Rights of Persons with Disabilities noted with concern the lack of measures taken on almost all the specific rights guaranteed by the Convention. Similarly, the GREVIO’s baseline evaluation report on the implementation of the Istanbul Convention in Switzerland highlighted ‘considerable disparities between cantons’ approaches, policies, legislation and measures to combat violence against women. The failure to harmonise practices and services, and sometimes a lack of inter-cantonal co-operation, may lead to varying levels of protection for women victims of violence depending on where they live’.Footnote 44

In summary, the existing mechanisms for implementing human rights treaties at the subnational level are limited. Simply multiplying the number of ‘awareness-raising’ mechanisms may not always be sufficient. Instead, a certain degree of harmonisation at the inter-cantonal or federal level may be necessary. For example, the establishment of rallying mechanisms could improve engagement with human rights treaties. To improve our understanding of the larger iterative process that may lead to engagement at the subnational level, the following chapters will examine the actual experiences of subnational actors (such as parliamentarians, bureaucrats and civil society) with international treaties. By gaining insight into their needs and perspectives, as well as the way they interact with human rights treaties, we want to understand the process of using such treaties and political authorities engaging with them.

3.7 Conclusion

This chapter has highlighted the ratification and implementation mechanisms of international human rights treaties in Switzerland’s federalist settings. While the ratification of treaties follows a formal procedure, our two case studies show that there is no preconceived procedure with regard to implementation. Therefore, we observe that implementation processes follow very diverse patterns. Several state entities responsible for the implementation of the Istanbul Convention designed implementation strategies and even a federal action plan, in what could be characterised as a top-down process. For the CRPD, despite the establishment of a focal point responsible for implementation, we observe that there has been no implementation strategy at the federal or inter-cantonal level. Thus, academic experts produced alternative tools to lead the implementation process.

This chapter also showed that in our two case studies, the mechanisms involved to spur subnational engagement with the treaties are ‘soft’. They are essentially information-based, i.e. ‘awareness-raising’ mechanisms, which seek to change the behaviour of the subnational authorities through information and advice. Other types of mechanisms, such as sanction or co-operation, were not used. Mechanisms of this kind have been successfully used to implement obligations in the field of bilateral agreements between Switzerland and the European Union (see, for example, (Kaempfer, 2023). It is conceivable that similar mechanisms could also be developed in the field of human rights. However, exploring this idea falls outside the scope of this book. Instead, in the upcoming chapters, we will delve deeper into the examination of individual cantons. We will investigate how local actors such as bureaucrats, elected officials and representatives of civil society—oftentimes as a result of these strategies and mechanisms—are using international treaties to further their own local objectives, agendas and strategies, thereby often contributing to their implementation.